French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

One of the major aims of European Union law is the promotion, development and dissemination of new technologies (Articles 179 and 180 TFEU). Through the digital agenda put in place in the context of Europe 2020 for smart, sustainable, inclusive growth, Europe is primarily pursuing two goals: to preserve the openness of the internet while enabling it to provide high-quality, innovative services, an …

Regulation of online advertising

One of the major aims of European Union law is the promotion, development and dissemination of new technologies (Articles 179 and 180 TFEU). Through the digital agenda put in place in the context of Europe 2020 for smart, sustainable, inclusive growth, Europe is primarily pursuing two goals: to preserve the openness of the internet while enabling it to provide high-quality, innovative services, and to guarantee fundamental rights such as freedom of expression and freedom to conduct business.

Directive No 2000/31 of 8 June 2000 lays down a clear and general framework to cover certain legal aspects of electronic commerce in the internal market. Recital 21 which sets out the coordinated field states that its scope of application covers only requirements relating to on-line activities such as online advertising. The directive emphasizes that commercial communications are essential for the financing . They must however respect a number of obligations relating to transparency in order to ensure the protection of consumers. Article 2 defines commercial communication as “any form of communication designed to promote, directly or indirectly, the goods, services or image of a company, organization or person pursuing a commercial, industrial or craft activity or exercising a regulated profession” with the exception of i) “information allowing direct access to the activity of the company, organization or person, in particular a domain name or an electronic-mail address” and ii) “communications relating to the goods, services or image of the company, organization or person compiled in an independent manner, particularly when this is without financial consideration”. Article 6 defines what information commercial communications must provide when they are part of, or constitute, an information society service .

2) Law on Confidence in the Digital Economy (LCEN)

Law No 2004-575 of 21 June 2004 on confidence in the digital economy (LCEN law)  transposed Directive 2000/31 into French law. The scope of the LCEN law is wider than that of Directive No 2000-31 as it also transposed Directive No 2002/58 of 12 July 2002 on data protection in the electronic communications sector, and particularly concerns online communications, e-commerce, security in the digital economy and the development of information and communication technologies. Article 20 of Law No 2004-275 defines electronic advertising as “any advertising, in whatsoever form, accessible to the public by an online communication service”. 

In order to contribute to the creation of an electronic environment in which consumers can be fully confident, the French advertising self-regulatory organization, the ARPP (Autorité de Régulation Professionnelle de la Publicité) - whose goal is to maintain high standards in terms of legal, honest, and truthful advertising, which is in the interest of both consumers and advertisers, issued a recommendation  in which it sets out a series of ethical rules for its members applicable to advertising and marketing communications, based on the guiding principles of the International Chamber of Commerce contained in the Consolidated ICC Code on advertising and marketing communications . Professional associations have also developed charters, such as the e-mailing charter, the right to be forgotten in targeted advertising or even of the right to be digitally forgotten on collaborative websites and search engines or guides, e.g. best practice guidances for the use of advertising cookies.

CJEU Case C-339/15 Luc Vanderborght, Judgment of 4 May 2017, LawLex201700000784JBJ: Directive No 2000/31 precludes national legislation which imposes a general and absolute prohibition of any advertising relating to the provision of oral and dental care services, inasmuch as it prohibits any form of electronic commercial communications, including by means of a website created by a dentist.

The concept of “information society service” is defined by Directive No 2000-31 by reference to Directive No 98/34 of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, amended by Directive No 98/48 of 20 July 1998 and Directive No 2006-96 of 20 November 2006, as “any service normally provided for remuneration, at a distance, by means of electronic equipment for the processing (including digital compression) and storage of data, and at the individual request of a recipient of a service” (Directive 2000/31, recital 17). For the purpose of that definition, according to Article 1 of Directive No 98/34, “at a distance” should be understood to mean that “the service is provided without the parties being simultaneously present”; “by electronic means” means that the service is sent initially and received at its destination by means of electronic equipment for the processing (including digital compression) and storage of data, and entirely transmitted, conveyed and received by wire, by radio, by optical means or by other electromagnetic means"; “at the individual request of a recipient of services” means that the service is provided through the transmission of data on individual request". Radio and television broadcasting services are excluded from this definition; Case CJEU Case C-484/14 Tobias Mc Fadden v Sony Music Entertainment Germany GmbH, Judgment of 15 September 2016, LawLex201600001451JBJ: the making available to the general public of an open WiFi network free of charge in order to draw the attention of  potential customers to the products and services of a shop, constitutes an “information society service” within the meaning of Directive No 2000/31; Case C-390/18 Airbnb Ireland, Judgment of 19 December 2019, LawLex202000000135JBJ: an intermediation service which, by means of an electronic platform, is intended to connect to put potential guest in contact, for a fee, with professional or non-professional hosts who offer short-term accommodation services, while also providing a number of services ancillary to this intermediation service, constitutes an information society service; Case C-62/19 Star Taxi App SRL and others, Judgment of 3 December 2020, LawLex202300002942JBJ, the intermediation service, which gives rise to the conclusion between the service provider and each authorized cab driver of a contract for the provision of services accompanied by the payment by the latter of a monthly subscription, brings together, by means of an electronic platform, a person wishing to make an urban journey and an authorized cab driver and involves, simultaneously, a request, made by means of a computer application, on the part of the person wishing to make a journey and a connection to that application on the part of the authorized cab driver stating his availability, constitutes an information society service; Case C-674/20 Airbnb Ireland UC, Judgment of 27 April 2022, LawLex202200002302JBJ.

Recommendation of 20 December 2010 “Communication publicitaire digitale”, http://www.arpp-pub.org/IMG/pdf/Reco_Comm_Pub_Digitale-3.pdf. This recommendation updates a 2000 recommendation entitled “Internet, advertising medium” by expanding its field of application to mobile advertising, social networks, video games, and connected TV. The recommendation deals with different formats of digital communications, including “teasing”, advertising by MMS/SMS, and behavioral advertising. It is based on six major ideas (1. The need to identify the form of advertising and the advertiser; 2. Extra vigilance in respect of children and teenagers in relation to the nature of the message and the collection of their personal data; 3. Compliance with recommendations relating to the “image of persons” and “race, religion, ethnic groups”; 4. Compliance with regulations on misleading advertising; 5. The moderation of content created by users for advertising purposes; 6. Compliance with reasonable characteristics relating to weight, size and use of sound). All of the ARPP's recommendations on advertising are contained in the ARPP Code, which is available at the following address:  https://www.arpp.org/wp-content/uploads/2017/12/ARPP-code.pdf

https://iccwbo.org/content/uploads/sites/3/2018/09/icc-advertising-and-marketing-communications-code-int.pdf

French Consumer Law

76. Regulation of online advertising

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76. Regulation of online advertising

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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